Designed to promote efficiency and to fill certain procedural loopholes, the Thai Arbitration Institute (‘TAI’) Rules 2017 have taken the place of TAI Rules 2003. In an attempt to check the rampant abuse of the loopholes by the parties and to usher in more fairness and objectivity in the proceedings, the first update since 2003 provides for some substantial changes.
Firstly, the arbitral institution has been granted broad powers to consolidate the proceedings irrespective of the presence of identical arbitration agreements. Such a move would lead to increased efficiency as the related arbitrations arising out of multiple contracts can be bundled as a single proceeding and disposed of in shorter duration with lesser cost. Nevertheless, this does lead to arbitral awards of TAI running the risk of being hit by the taking of the Courts at the enforcement stage. Secondly, a minor addition has been done by providing for a sole arbitrator in case the parties are not able to reach an agreement on the number of arbitrators but it goes a long way in making the proceeding speedier as the absence of such a simple provision in 2003 rules helped some cunning parties to delay the proceedings.
The third and probably the most significant change brought about is regarding the provision for widening the powers of the tribunal to take up the challenges regarding the appointment of arbitrators. In certain cases, the Rules 2017 provides for the establishment of a panel of umpires, the decision of which, shall be final and binding on the parties. Fourthly, in a continuation to give an extended range of powers to the tribunal, Article 39 confers the power to grant interim measures – vested in the Courts till now – on the tribunal itself. In order to make the proceedings more and more transparent, TAI Rules 2017 requires the parties to disclose all the communications with the arbitrators, including the Chairman or even the nominees for the same. Because of the lack of any provision regarding setting up of procedural timetable in Rules 2003, the proceedings took a really long time before it finally becomes an enforced award. In an aspirational move to pave way for speedier proceedings, Article 28 of TAI Rules 2017 provides for chalking out a well laid-out timetable by the arbitral tribunal in consonance with the parties within 30 days of the appointment of the last arbitrator. Although, both the Rules provide for an upper limit of 180 days for the tribunal to pass an award, this structural approach of TAI Rules 2017 would go a long way to take each and every participant in the proceeding on board in setting up the timetable so that they may not plead themselves as unbeknownst in future hearings.
Besides these major changes, other praiseworthy elements of The TAI Rules 2017 include making the confidentiality of proceedings explicit under Article 36, a mandatory approval of the award by TAI, and providing for the language of the contract to be the default language of arbitration where a consensus for the same would not be reached.
Ambrish Tiwari, Gujarat National Law University